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David Greenhalgh of H2O Law LLP discusses the medical screening of employees and job applicants.

We hear from an increasing number of clients who wish to introduce a policy of medical screening post offer/pre employment but are concerned about the sort of questions they can ask and whether such a policy could be considered discriminatory. In short, employers are entitled to require successful job applicants to disclose medical information and can legitimately ask a wide range of questions including whether the applicant has a disability or any health problems which may affect their ability to work.

The key advantage of such screening is to provide you with knowledge of an employee’s medical condition before they join your business. We frequently hear from clients who suddenly find out that one of their employees has a disability after many months of employment. Businesses need to know about the existence of any disabilities from the outset to ensure compliance with rules around considering whether to make any reasonable adjustments.

The most common way to screen successful job applicants is to give them a medical questionnaire to complete as a condition of the job offer (in the same way as references). This process can be carried out in-house or via an occupational healthcare provider. If a job applicant discloses a disability you must assess this information and consider whether any reasonable adjustments are necessary to working arrangements. The wording of the questionnaire can also help you to comply with your duty to consider making reasonable adjustments by inserting a question asking employees with disabilities whether there are any adjustments they consider reasonable to enable them to do the job.

As far as is practical we advise against requiring completion of a medical questionnaire at the initial application. If an employer does not make an offer of employment for any reason it will be exposed to claims of discrimination on the basis that the position was not offered due to the medical information disclosed.

Medical questionnaires should include a declaration that the information given is accurate stating that it will be a disciplinary offence if false information is given. Therefore, if you later discover an employee has a disability which he or she did not disclose you could take disciplinary action against him or her in respect of the non-disclosure and importantly not the existence of a disability.

If the questionnaire indicates the employee has a disability and you believe this is likely to affect his/her ability to carry out their job and after consideration you come to the conclusion that there are no reasonable adjustments you can make and if redeployment is not possible or practicable, you may be able to dismiss the employee on capability grounds. This option also carries the risk of the employee claiming unfair dismissal and/or disability discrimination so you should be sure of your position before you take the decision to dismiss.

TIP: Be consistent. Ask all successful job applicants the same questions. Keep questions wide, generic and not overly intrusive.

TIP: Seek legal advice when devising your questionnaire to ensure that it is specific to your business and does not contain unnecessary or inappropriate questions and that it is drafted to assist compliance with your legal duties in relation to considering reasonable adjustments.

TIP: If it is unclear whether a medical condition disclosed by a successful job applicant constitutes a disability take legal advice as you are only obliged to consider reasonable adjustments (and can only be sued for disability discrimination) if the job applicant has a disability within the statutory definition.

If you have any queries about any of the matters raised in this article or any other employment law issue please contact David Greenhalgh at H2O Law LLP on 020 7405 4700.